Ordinance 2022-4520 ORDINANCE NO. 2022-4520
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE
CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS
OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY
AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE
MISDEMEANORS," BY ADOPTING,THROUGH SPECIFIC REFERENCE, THE
STATE LAW MISDEMEANOR OFFENSE OF BREACH OF THE PEACE /
DISORDERLY CONDUCT, TO AFFIRMATIVELY ESTABLISH AN OFFENSE
AGAINST MUNICIPAL LAW FOR THE SAME ACT(S) THAT CONSTITUTE
SUCH OFFENSE AGAINST STATE LAW; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, on September 25, 2017, the Mayor and City Commission adopted Resolution
No. 2017-30023, which authorized the City Attorney's Office to commence the in-house
prosecution, by and through a City municipal prosecution team, of those individuals exclusively
charged with violating the City's criminal ordinances; and
WHEREAS, the Miami-Dade State Attorney's Office (the "Miami-Dade SAO") continues
to be the prosecutorial entity responsible for the prosecution of those offenders arrested for the
commission of all felony, misdemeanor, and/or County ordinance violations committed in Miami-
Dade County; and
WHEREAS, due in part to its reputation as an internationally renowned tourist destination
and the constant heavy influx of tourists and other visitors, the City continues to contend with
many criminal, quality of life offenses being committed within its jurisdictional bounds; and
WHEREAS, the commission of misdemeanor and municipal ordinance offenses adversely
impact residents' quality of life and tourists' vacation experience, and continue to generate an
inordinate number of issues and complaints from the City's residents, visitors, and business
establishments; and
WHEREAS, some of those misdemeanor offenses which most adversely affect the City's
residents, visitors, and businesses include battery, indecent exposure, criminal mischief, and
breach of the peace/disorderly conduct; and
WHEREAS, in order to acquire greater control and discretion regarding the prosecution
of those identified misdemeanor offenses occurring in the City, and to relieve the Miami-Dade
SAO of some of its prosecutorial burden, the City desires to become the entity responsible for the
prosecution of those specified State law misdemeanor offenses (excluding domestic battery
cases); and
WHEREAS, Florida caselaw has established that a municipality may enact an ordinance
which creates an offense against municipal law for the same act that constitutes an offense
against State law(see Jaramillo v. City of Homestead, 322 So.2d 496 (Fla. 1975)); and
, WHEREAS, Florida law has further established that a municipality, by ordinance, may
adopt State misdemeanor statutes by specific reference or by general reference, such as that
contained in an ordinance making it unlawful to commit, within City limits, any act which is (or
shall be) recognized by the laws of the State as a misdemeanor(Id. at 498); and
WHEREAS, the City previously established, pursuant to Section 70-1 of the City Code,
that it is unlawful for any person to commit within the City any act that is (or shall be) recognized
by the laws of the State as a misdemeanor and that the commission of such acts is forbidden;
and
WHEREAS, on January 20, 2022, the Mayor and City Commission adopted Resolution
No. 2022-32020, which expanded the City's municipal prosecution program by directing that the
City shall become the primary entity responsible for the prosecution of the State law misdemeanor
offenses of battery(except domestic battery), criminal mischief, and indecent exposure; and
WHEREAS, on March 9, 2022, pursuant to Resolution No. 2022-32020, the Mayor and
City Commission adopted Ordinance No. 2022-4477, which created specific offenses against
municipal law for the same acts that constitute the State law misdemeanor offenses of battery
(non-domestic), criminal mischief and exposure of sexual organs (indecent exposure); and
WHEREAS, the Mayor and City Commission hereby desire to adopt the following
amendment in order to further expand the City's municipal prosecution program by creating,
through specific reference, an offense against municipal law for the same act(s) that constitute
the State law misdemeanor offense of breach of the peace/disorderly conduct.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That the section of the City Code creating offenses against municipal law for
the same acts that constitute misdemeanor offenses against State law, as such Ordinance
is codified in section 70-1 of the City Code, be amended as follows and as hereinafter set
forth below:
CHAPTER 70
MISCELLANEOUS OFFENSES
ARTICLE I. IN GENERAL
* * *
Sec. 70-1. State misdemeanors.
(a) It shall be unlawful for any person to commit within the city any act that is or shall be
recognized by the laws of the state as a misdemeanor, and the commission of such acts is
• hereby forbidden.
(b) Notwithstanding subsection (a), the following misdemeanor(s) under state law are eligible to
receive a civil violation notice, at the discretion of a law enforcement officer, provided that
such violations are not charged in conjunction with any charge that is a felony, driving under
2
the influence, incident involving domestic-violence, or violent crime, as those terms are
defined under state law:
(1) Possession of cannabis in an amount of 20 grams or less, as set forth in F.S. §
893.13(6)(b), as such may be amended from time to time; and/or
(2) Possession of drug paraphernalia, as set forth in F.S. §§ 893.146 and 893.147(1)(b),
as such may be amended from time to time.
An individual issued a civil violation notice for a violation of subsection (b)(1) or (2) will be
subject to the fine set forth herein.
(3) Penalties and enforcement.
a. [Civil fine.]A person violating subsection (b)(1) or (2) shall receive a civil fine of
$100.00.
b. Enforcement. The Miami Beach police department shall enforce this section. This
shall not preclude other law enforcement agencies from any action to assure
compliance with this section and all applicable laws. If a police officer finds a
violation of (b)(1) or (2), the police officer will be authorized to issue a notice of
violation. The notice shall inform the violator of the nature of the violation, amount
of fine for which the violator is liable, instructions and due date for paying the fine,
that the violation may be appealed by requesting an administrative hearing before
a special magistrate within ten days after service of the notice of violation, and that
the failure to appeal the violation within ten days of service shall constitute an
admission of the violation and a waiver of the right to a hearing.
c. Rights of violators; payment of fine; right to appear; failure to pay civil fine or to
appeal; appeals from decisions of the special magistrate.
1. A violator who has been served with a notice of violation must elect to either:
i. Pay the civil fine in the manner indicated on the notice of violation;
or
ii. Request an administrative hearing before a special magistrate to
appeal the notice of violation, which must be requested within ten
days of the service of the notice of violation.
2. The procedures for appeal by administrative hearing of the notice of violation
shall be as set forth in sections 30-72 and 30-73 of this Code.Applications for
hearings must be accompanied by a fee as approved by a resolution of the
city commission, which shall be refunded if the named violator prevails in the
appeal.
3. If the named violator, after issuance of the notice of violation, fails to pay the
civil fine, or fails to timely request an administrative hearing before a special
magistrate, the special magistrate may be informed of such failure by report
' from the police officer. The failure of the named violator to
appeal the decision of the police officer within the prescribed time period shall
constitute a waiver of the violator's right to an administrative hearing before
the special magistrate, and shall be treated as an admission of the violation,
for which fines and penalties shall be assessed accordingly.
4. A certified copy of an order imposing a fine may be recorded in the public
records, and thereafter shall constitute a lien upon any real or personal
3
property owned by the violator, which may be enforced in the same manner
as a court judgment by the sheriffs of this state, including levy against the
violator's real or personal property, but shall not be deemed to be a court
judgment except for enforcement purposes. On or after the 61st day following
the recording of any such lien that remains unpaid, the city may foreclose or
otherwise execute upon the lien.
5. Any party aggrieved by a decision of a special mastef magistrate may appeal
that decision to a court of competent jurisdiction.
6. The special magistrate shall be prohibited from hearing the merits of the
notice of violation or considering the timeliness of a request for an
administrative hearing if the violator has failed to request an administrative
hearing within ten days of the service of the notice of violation.
7. The special magistrate shall not have discretion to alter the penalties
prescribed in subsection (3)a.
(c) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor battery, as such offense is set forth in Florida statute 784.03.
(d) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor criminal mischief, as such offense is set forth in Florida statute
806.13.
(e) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor exposure of sexual organs (indecent exposure), as such
offense is set forth in Florida statute 800.03.
(f) It shall be unlawful for any person to commit, within the city, any act that is or shall be
recognized as a misdemeanor breach of the peace /disorderly conduct, as such offense is
set forth in Florida statute 877.03.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remaindershall not be affected by such invalidity.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of the Miami
Beach City Code. The sections of this ordinance may be renumbered or relettered to
accomplish such intention, and the word "ordinance" may be changed to "section," "article," or
other appropriate word.
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SECTION 5. EFFECTIVE DATE. ',
This Ordinance shall take effect on the C. day of lvOlkM►, e. , 2022.
PASSED AND ADOPTED this u?d day of b{r , 2022.
ATTEST:
Dan Gelber, Mayor
OCT 2 7 2022
Raf I E. Granado, City Clerk
(Sponsored by Vice-Mayor Alex J. Fernandez)
Underline denotes additions
Strikethreugh denotes deletions = 'y''%
s
kIIICORP ORATED!
�.
, APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
City Attomeyiv4if Date
•
Ordinances R5 D
MIAMIBEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: October 26, 2022
10:25 a.m.Second Reading Public Hearing
SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,AMENDING CHAPTER 70 OF THE CODE OF
THE CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS
OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY
AMENDING SECTION 70-1 THEREOF, ENTITLED "STATE
MISDEMEANORS," BY ADOPTING, THROUGH SPECIFIC REFERENCE,
THE STATE LAW MISDEMEANOR OFFENSE OF BREACH OF THE
PEACE / DISORDERLY CONDUCT, TO AFFIRMATIVELY ESTABLISH AN
OFFENSE AGAINST MUNICIPAL LAW FOR THE SAME ACT(S) THAT
CONSTITUTE SUCH OFFENSE AGAINST STATE LAW; AND PROVIDING
FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
ANALYSIS
See Commission Memorandum.
SUPPORTING SURV Y DATA
N/A
FINANCIAL INFORMATION
None at this time.
Is this a"Residents Right Does this item utilize G.O.
to Know"item.pursuant to Bond Funds?
City Code Section 2-14?
No No
Legislative Trackinq
Office of the City Attorney
Sponsor
Vice-Mayor Alex Fernandez
Page 625 of 1166
ATTACHMENTS:
Description
❑ Commission Memorandum
❑ Ordinance
Page 626 of 1166
AM 1 BEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Dan Gelber
Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: September 14, 2022
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 70 OF THE CODE OF THE
CITY OF MIAMI BEACH, FLORIDA, ENTITLED "MISCELLANEOUS
OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL," BY
AMENDING SECTION 70-1 THEREOF, ENTITLED"STATE MISDEMEANORS,"
BY ADOPTING, THROUGH SPECIFIC REFERENCE, THE STATE LAW
MISDEMEANOR OFFENSE OF BREACH OF THE PEACE / DISORDERLY
CONDUCT, TO AFFIRMATIVELY ESTABLISH AN OFFENSE AGAINST
MUNICIPAL LAW FOR THE SAME ACT(S) THAT CONSTITUTE SUCH
OFFENSE AGAINST STATE LAW; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
The proposed Ordinance, which is sponsored by Vice-Mayor Alex Fernandez, seeks to adopt, by
specific reference,the state law misdemeanor offense of breach of the peace/disorderly conduct.
The proposed Ordinance would affirmatively make the conduct underlying this crime an offense
against municipal law for the same act(s) that constitute such offense against State law, and
thereby permit the City to prosecute such criminal violations under City law.
On September 25, 2017, the Mayor and City Commission adopted Resolution No. 2017-30023,
which authorized the City Attorney's Office to commence the in-house prosecution, by and
through a City municipal prosecution team, of those individuals exclusively charged with violating
the City's criminal ordinances. However, the Miami-Dade State Attorney's Office (the "Miami-
Dade SAO")remained the prosecutorial entity responsible for the prosecution of persons arrested
for the commission of all felony, misdemeanor, and/or County ordinance violations committed in
Miami-Dade County.
No doubt due in part to its reputation as an internationally renowned tourist destination and the
constant heavy influx of tourists and other visitors, the City continues to contend with many
criminal, quality of life offenses being committed within its jurisdictional bounds. The commission
of misdemeanor and municipal ordinance offenses in the City adversely impact residents' quality
of life and tourists'vacation experience, and continue to generate an inordinate number of issues
and complaints from the City's residents, visitors, and business establishments.
Some of those misdemeanor offenses which most adversely affect the City's residents, visitors,
and businesses include battery, indecent exposure and criminal mischief. In order to acquire
greater control and discretion regarding the prosecution of such offenses occurring within the City,
and to relieve the Miami-Dade SAO of some of its prosecutorial burden, the City desired to
Page 627 of 1166
Commission Memorandum—Amending Sec. 70-1 -Specifically Adopting State Law
Misdemeanor of Breach of the Peace/Disorderly Conduct
September 14, 2022
Page 2
become the primary entity responsible for the prosecution of those specified State law
misdemeanor offenses (excluding domestic battery cases).
As such, on January 20, 2022, the Mayor and City Commission adopted Resolution No. 2022-
32020, which expanded the City's municipal prosecution program and directed that the City
become the primary entity responsible for the prosecution of the State law misdemeanor offenses
of battery(except domestic battery), criminal mischief, and indecent exposure.
Then,on March 9,2022,pursuant to Resolution No.2022-32020,the Mayor and City Commission
adopted Ordinance No. 2022-4477,which created specific offenses against municipal law for the
same acts that constitute the State law misdemeanor offenses of battery(non-domestic), criminal
mischief and exposure of sexual organs(indecent exposure).
The proposed Ordinance would create, through specific reference, an offense against municipal
law for the same act(s)that constitute the State law misdemeanor offense of breach of the peace
/disorderly conduct, as such offense is set forth in Fla. Stat. 877.03.
Florida caselaw has established that a municipality may enact an ordinance which creates an
offense against municipal law for the same act that constitutes an offense against State law.
Florida law has further established that a municipality may, by ordinance, adopt State
misdemeanor statutes by specific reference or by general reference, such as that contained in an
ordinance making it unlawful to commit,within City limits, any act which is(or shall be)recognized
by the laws of the State as a misdemeanor.
Now, by adopting the proposed Ordinance, the Mayor and City Commission will be enabling the
City's municipal prosecution team to, most efficiently and effectively, become the primary entity
responsible for the prosecution of the criminal municipal ordinance violation, which act(s) are
recognized by State law as the misdemeanor offense of breach of the peace/disorderly conduct.
RAP/MAF/bhs
2
Page 628 of 1166